Recent developments have made life harder for people applying for asylum in this country. First, the Department of Homeland Security (DHS) announced a new security initiative last month called Operation Liberty Shield. Among other things, this program requires the detention of all asylum seekers from 33 countries where al-Qaeda or related terrorist groups operate. The directive requires such asylum seekers to remain detained until their asylum claims are decided, which can take six months or longer. Before, asylum-seekers were held beyond an initial screening only on a case-by-case basis.Second, on April 17, 2003 Attorney General John Ashcroft issued a precedent decision, Matter of D-J-, 23 I. & N. Dec. 572 (Att’y Gen. 2003), ordering a Haitian asylum seeker to be held without bond. The order carries broad ramifications not only for asylum seekers but for all undocumented migrants.

Finally, in recent months federal prosecutors in south Florida have criminally charged dozens of recently arrived asylum seekers for entering the United States with false documents. Attorneys and human rights organizations claim that the criminal charges violate international law and could have serious consequences for people fleeing for their lives without the time or ability to obtain proper documents. This article analyzes all three developments. Detaining Asylum Seekers

Although the DHS has not officially stated which countries are affected by its new detention policy, the Lawyers Committee for Human Rights reports that the 33 countries included in the new policy are Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Philippines, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Thailand, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan and Yemen. Palestinian asylum seekers from Gaza and the West Bank also face automatic detention. See http://www.lchr.org/refugees/asylum/torchlight/newsletter/newslet_12.htm (last visited Apr. 21, 2003). Nationals of most of these countries are subject to special registration when coming to the United States on nonimmigrant (temporary) visas. See generally Stanley Mailman & Stephen Yale-Loehr, The New Rule on Alien Registration, New York Law Journal, Oct. 28, 2002, at 3.

DHS officials have justified the new policy in part by noting that at least three terrorists originally entered the United States as asylum applicants: Omar Abdel Rahman, the Egyptian sheik who was convicted in 1995 of conspiring to blow up the United Nations headquarters and other landmarks in New York; Mir Aimal Kansi, who killed two employees of the Central Intelligence Agency outside the agency’s headquarters in 1993; and Gazi Ibrahim Abu Mezer, who was convicted on 1997 charges of plotting to bomb New York subways. “You see what a quandary this places us in,” William Strassberger, an immigration spokesman for the DHS, told the New York Times. “We feel strongly that we want to preserve the ability of people to seek refuge here. But at the same time, we have to protect the public, and we do have heightened concerns about individuals coming from some specific countries. The thinking is that we don’t know who they are.” Christopher Drew & Adam Liptak, Immigration Groups Fault Rule on Automatic Detention of Some Asylum Seekers, New York Times, Mar. 31, 2003, at B15.

The new detention policy applies only to people who arrive at a border or point of entry and immediately apply for asylum, not to people already in the United States who later apply for asylum. The DHS estimates that the new policy may affect only about 600 people a year. See Press Briefing by DHS Secretary Tom Ridge (Mar. 18, 2003), available at http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0118.xml (last visited Apr. 21, 2003).

Although the number of asylum seekers affected may be small, the principle is important. U.S. asylum law is based on the 1951 U.N. Convention Relating to the Status of Refugees (U.N. Refugee Convention) and the 1967 protocol to that convention, which the United States has ratified. Hence, refugee advocates say, the United States can change its asylum procedures only if it stays within the bounds of international refugee law.

In 2002 the U.N. High Commissioner for Refugees (UNHCR) issued an advisory opinion condemning the policy of generally detaining asylum seekers. The UNHCR stressed that such a policy is contrary to the norms and principles of international refugee law. The UNHCR stated that when a country detains an asylum seeker, it should be for the purpose of “undertaking a preliminary interview and not for the entire time it may take to make a determination on the merits.” The UNHCR advisory opinion also states that subjecting asylum seekers to detention based on their national origin is contrary to Article 3 of the U.N. Refugee Convention, is discriminatory, and constitutes arbitrary detention. The decision to detain is arbitrary if it “lacks an individualized analysis of the reasons for detention.” Letter from UNHCR Regional Representative Guenet Guebre-Christos to attorney Rebecca Sharpless of the Florida Immigrant Advocacy Center (Apr. 15, 2002), reproduced in 79 Interpreter Releases 630 (Apr. 29, 2002).

Under the UNHCR analysis, the DHS detention policy is plainly arbitrary. By detaining asylum applicants based simply on their nationality, the United States is arguably violating international asylum norms. However, those norms might not be enforceable in the United States. Appellate courts have held that the 1967 protocol to the U.N. Refugee Convention provides no enforceable rights in U.S. courts because it is not self-executing. See Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991); Bertrand v. Sava, 684 F.2d 204, 218 (2d Cir. 1982). But see Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983) (noting that other courts have held that asylum seekers have interests protected by the U.S. asylum statute and refugee treaty). Unless the U.N. Refugee Convention and Protocol directly apply in the United States, interpretive materials by UNHCR officials cut little ice in U.S. courts.

Without specific protection in positive U.S. law, arriving noncitizens face an uphill battle in obtaining any due process. The Supreme Court has “long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982) (citations omitted). The courts have generally deferred to the executive branch on immigration issues.

Whether it is constitutionally permissible for the government to adopt different parole criteria for different nationalities is a question that the Supreme Court left open in Jean v. Nelson, 472 U.S. 846 (1985). See, e.g., Jeanty v. Bulger, 204 F. Supp. 2d 1366, 1379 (S.D. Fla. 2002), aff’d sub nom. Moise v. Bulger, 321 F.3d 1336 (11th Cir. 2003) (per curiam). Jeanty reflects another recent policy of singling out asylum applicants by nationality for disparate treatment. In December 2001, immigration authorities in Florida began to automatically detain Haitian asylum seekers who arrived by boat, while applicants of other nationalities could obtain release pending their asylum hearings. Dana Canedy & Eric Schmitt, In Florida, a Limbo for Haitians Only, New York Times, May 13, 2002, at A10. The decisions in Jeanty upheld the change in detention policy, deferring to the government’s claim that the policy change was justified to prevent loss of life and avoid mass migration from Haiti. A court might grant similar deference to detaining asylum applicants, particularly given the enormous latitude that federal enforcement authorities have generally enjoyed after the terrorist attacks of September 11, 2001.

Matter of D-J-

Attorney General Ashcroft’s April 17 decision in the case of David Joseph, an asylum seeker from Haiti, has triggered considerable criticism. One of a boatload of Haitians captured by the Immigration and Naturalization Service (INS) last October shortly after landing near Miami, Mr. Joseph was ordered released on a bond of $2,500 by an immigration judge (IJ) pending the resolution of his asylum claim. The INS appealed to the Board of Immigration Appeals (BIA). In an unpublished order a three-member panel of the Board, applying traditional BIA bond case law, upheld the IJ’s decision and dismissed the INS appeal. Asa Hutchinson, Under Secretary for Border and Transportation Security within the DHS, referred the Board’s decision to Attorney General Ashcroft for his review. The Attorney General reversed the BIA and ordered Mr. Joseph held without bond throughout the pendency of his asylum claim.

Citing national security concerns, Attorney General Ashcroft claimed that releasing Mr. Joseph would send a “signal” to Haiti, potentially causing a “surge” of asylum seekers by sea, possibly infiltrated by “Pakistanis, Palestinians,” and others who are alleged to use Haiti as a “staging” ground for unlawful migration into the United States.

In addition to further chilling asylum applicants from coming to the United States, the breadth of the decision indicates the Attorney General might support the setting of high bonds--or detention without bond--for undocumented migrants from any country, not just asylum seekers.

In another policy reversal, the federal government is now prosecuting asylum seekers, at least in Florida, if they arrive with false documents. Using false documents can be a felony punishable up to 10 years in jail. 18 U.S.C. § 1546. However, until now U.S. authorities had not generally charged asylum seekers with such crimes, apparently in deference to the U.N. Refugee Convention. Article 31(1) of the Refugee Convention states that member countries cannot impose penalties on asylum seekers who enter illegally, as long as they come directly from the country where they fled persecution, present themselves without delay to the authorities, and show good cause for their illegal entry or presence. As we have seen, however, some U.S. courts don’t recognize the U.N. Refugee Convention as self-executing and therefore enforceable by itself in the United States.

Nevertheless, the combination of emigration restrictions, entry visa requirements, and sanctions on commercial air carriers for bringing people without proper visas often leaves genuine refugees with no choice but to resort to false documents. It may be the only way to save their lives. The drafters of the Convention understood this, and article 31 was the solution. It could hardly be more explicit.

International case law supports this view. In Regina v Uxbridge Magistrates’ Court and another ex parte Adimi, [1999] 4 All E.R. 520 (Q.B. 1999), a U.K. court held that the purpose of article 31(1) of the U.N. Refugee Convention was to provide immunity from criminal prosecution for refugees whose quest for asylum reasonably involved them in breaching domestic law, and that article 31(1) protected refugees whose illegal entry, use of false documents, or delay could be attributed to a bona fide desire to seek asylum.

This view also holds true in the United States. The Board of Immigration Appeals (BIA), the chief U.S. administrative immigration tribunal, has recognized that “there may be reasons, fully consistent with the claim of asylum, that will cause a person to possess false documents, such as the creation and use of a false document to escape persecution by facilitating travel.” Matter of O-D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998). The Ninth Circuit has agreed, stating that in O-D- “[t]he BIA set forth a clear division between two categories of false document presentations: (1) the presentation of a fraudulent document in an asylum adjudication for the purpose of establishing the elements of an asylum claim; and (2) ‘the presentation of a fraudulent document for the purpose of escaping immediate danger from an alien’s country of origin or resettlement, or for the purpose of gaining entry into the United States.’” Akinmade v. INS, 196 F.3d 951, 955 (9th Cir. 1999) (quoting O-D-). Using a false document for the second purpose will not destroy an asylum claim.

These cases did not involve criminal charges brought against asylum seekers. But they show that asylum seekers may have legitimate reasons for using false documents. Charging them with a crime for doing so essentially negates the purpose of asylum law.

“There’s longstanding recognition that sometimes refugees are forced to flee from their persecutors with false documents. That’s something that happened in WWII. That’s why Raoul Wallenberg is seen as a hero, for giving false passports to Jews fleeing the Holocaust,” Eleanor Acer, asylum program director for the New York-based Lawyers Committee for Human Rights, told a Florida newspaper. Tanya Weinberg, Asylum Seekers Face U.S. Charges; Prosecutors Say Dozens Entered Country Illegally, Fort Lauderdale Sun-Sentinel, Apr. 16, 2003, at 1B.

Conclusion

U.S. authorities are understandably concerned with the threat of foreign terrorists. But these new policies, targeting asylum seekers, are unnecessarily rigid. They turn their backs on the historical examples that prompted the U.N. Refugee Convention and the purpose of asylum law: to protect people who have been abused or tortured and who are fleeing persecution by oppressive governments. Charging asylum seekers with crimes because they used false documents or requiring them to remain in jail during the often-lengthy asylum process compounds rather than alleviates their trauma. The normal procedures adequately allow the U.S. government to establish whether an asylum applicant should be detained as a security threat or charged with a crime. These new blanket procedures, which apply across the board rather than on a case-by-case basis, go too far, even in days of heightened security concerns. They should be eliminated.

_______ * An earlier version of this article originally appeared in the April 28, 2003 issue of the New York Law Journal. Copyright © 2003 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.